Our Ref: LGR85/19/6 312 Index
March 1998
SUPERANNUATION ACT 1972
LOCAL GOVERNMENT PENSION SCHEME REGULATIONS 1995 (“the 1995 regulations”)
1. I refer to your letter of 19 December in which you appeal, on behalf of Mr XXX, (under regulation J8 of the 1995 regulations) to the Secretary of State for the Department of the Environment, Transport and the Regions against the decision of Mr XXX, the Appointed Person. The Appointed Person upheld the decision of the XXX Council (the council) not to allow the early payment of Mr XXX’s deferred local government pension benefits on the grounds that his medical condition is not permanent.
2. The question for determination by the Secretary of State is whether since ceasing his employment with the council Mr XXX has become permanently incapable of carrying out his former duties efficiently because of ill-health or infirmity of mind or body and so qualifies for the early payment of his local government pension benefits.
3. The Secretary of State has considered all the representations and evidence. Copies of all the documents supplied by the Appointed Person have been sent to you under cover of the Department’s letter of 5 February 1998.
4. Secretary of State’s determination: The Secretary of State having taken into account the appropriate regulations, finds that for the purposes of the 1995 regulations on the balance of probability the medical evidence indicates that since ceasing employment with the council Mr XXX has become incapable of efficiently performing his former duties by reason of permanent ill-health or infirmity of mind or body. His local government pension benefits should be paid with effect from 16 October 1997, the date of Dr XXX’s letter to Mr XXX in which he opined that he now considered Mr XXX to be permanently medically unfit for his work as an electrician. The Secretary of State’s reasons and the regulations which he considers apply in Mr XXX’s case are set out in the annex to this letter, which forms an integral part of the determination. His decision replaces that made by the Appointed Person on 26 November 1997. He is acting judicially and has no power to modify the application of the regulations to the facts of the case. Having made his determination he has no power to alter it unless instructed to in a judgement by the High Court. Because of this officials may not discuss the case further.
5.The Occupational Pensions Advisory Service (OPAS) is available to assist members and beneficiaries in connection with difficulties which they have failed to resolve. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 233 8080).
6. The Pensions Ombudsman may investigate and determine any complaint or dispute of fact or law in relation to the local government pension scheme. His address is 11 Belgrave Road, London, SW1V 1RB (telephone number 0171 834 9144).
EVIDENCE RECEIVED
1. The following evidence has been received and taken into account:
a. from Mrs XXX, XXX Citizens Advice Bureau, on behalf of Mr S XXX: letter dated 19 December 1997 and enclosures and 9 February 1998; and
b. from Mrs XXX, of the council: letter dated 26 January 1998 enclosing copies of all the evidence considered by the Appointed Person, Mr XXX, and a copy of his decision letter (listed in the Department’s letter of 5 February 1998).
REGULATIONS CONSIDERED AND REASONS FOR DECISION
2. From the evidence submitted the following relevant points have been noted:
a. Mr XXX was employed by the council;
b. at the time he ceased employment with the council he was an electrician;
c. his employment ceased in 1988; and
d. he is age 54.
3. The Secretary of State in reaching his decision has had regard to the regulations which, in his view, apply. The Secretary of State notes that the Appointed Person, Mr XXX, arranged for Mr XXX’s medical evidence to be reviewed by an independent medical adviser - Dr XXX M.B., M.R.C.P. Consultant Staff Physician. Dr XXX considered the correspondence made available to him and obtained a current medical report from Mr XXX’s own medical practitioner, XXX. Dr XXX wrote to Mr XXX on 16 October 1997 with his findings. He noted that XXX had confirmed that Mr XXX is still suffering severe migrainous headaches which cause incapacitating debility. These headaches are occurring almost daily and are associated with visual disturbance, nausea and vomiting. Not only do they prevent him working, but they also severely handicap his daily activities. He considered that in the absence of evidence of underlying organic ill-health they are thought to be psychological in onset and linked to an ongoing clinical depression. Dr XXX further noted that Mr XXX had been treated for depression for twelve months but remains depressed and is still suffering severe migrainous headaches.
4. Dr XXX opined that given Mr XXX’s age and medical circumstances his employment as an electrician should be terminated on the grounds of his continuing ill-health. He considered that as an electrician his frequent severe migrainous attacks made him not only medically unfit, but also unsafe, to be employed in such work. He further opined that he regarded him as now permanently medically unfit for his work as an electrician given the catalogue of health problems, psychological or otherwise, in recent years. He regarded him as being eligible for early payment of pension benefits on the grounds of his continuing ill-health.
5. Mr XXX also sought the views of Dr XXX BSc MRCP, MFOM, MBA, the council’s medical adviser. Dr XXX reviewed the medical file and came to the same conclusion as Dr XXX, Consultant Occupational Physician (the council’s previous medical adviser) that there was no unequivocal evidence that Mr XXX has a permanent disabling illness. The Secretary of State notes that Dr XXX’s report and Mr XXX’s medical file were passed to Dr XXX. Dr XXX felt unable to alter his earlier recommendation. He noted that a consultant neurologist’s opinion in September 1986 concluded that Mr XXX’s headaches were caused by his underlying depression and that he had not recommended migraine-specific treatment but anti-depressant and analgesics. He considered that even if Mr XXX has migraine it is manageable with appropriate treatment. Dr XXX concluded that as neither depression nor migraine can be classified as permanently disabling he was unable to change his initial recommendation.
6. Mr XXX in his letter of 26 November 1997 noted that the independent medical adviser had recommended that Mr XXX’s local government pension benefits be brought into payment on health grounds. He further noted that the council’s medical adviser supported the opinion of Dr XXX, his predecessor, that Mr XXX’s condition is not permanent and is manageable with the appropriate treatment. Mr XXX concluded that as the opinion of the council’s medical adviser, a qualified Occupational Therapist, was that Mr XXX’s medical condition is not permanent, he was unable to recommend early payment of his deferred benefits.
7. The Secretary of State has considered all the medical evidence and opinions expressed. He notes that there is agreement that Mr XXX is suffering from severe migrainous headaches and that in the absence of evidence of underlying organic ill-health they are thought to be psychological in onset and linked to an ongoing clinical depression. He notes, however, that there is a disagreement about whether Mr XXX’s medical condition is permanent.
8. The Secretary of State considers that where there is a difference of medical opinion both views must be taken into account in reaching a decision. He has therefore considered very carefully all the medical evidence provided including the differing opinions of Dr XXX and Dr XXX. When Mr XXX last applied for early payment of his retirement benefits the test to be applied was whether he was incapable of discharging efficiently the duties of his former employment as an electrician with the council by reason of permanent ill-health or infirmity of mind or body (regulation D11 of the 1995 regulations). Since 28 March 1997 the regulation has been amended and the test is now whether he is permanently incapable of performing efficiently his former duties by reason of ill health or infirmity. The 1995 regulations do not define permanence in relation to either ill-health or incapacity; the Secretary of State takes the view that this means that a person’s condition would prevent him from being able to perform efficiently the duties of the former employment (in Mr XXX’s case those of an electrician) before normal retirement age. The Secretary of State notes that Dr XXX has taken into account Mr XXX’s age and medical circumstances in reaching his conclusion and that he opined that he would now regard him as permanently medically unfit for his work as an electrician. Taking all the medical evidence into account, the Secretary of State is persuaded that on the balance of probability the medical evidence indicates that Mr XXX has now become permanently incapable by reason of ill-health or infirmity of mind or body of discharging efficiently the duties of his former employment. There is no definitive medical evidence showing precisely when Mr XXX became so incapable, but weighing up both the earlier medical evidence and Dr XXX’s report, the Secretary of State considers it fair to conclude that Mr XXX’s deferred local government pension benefit should be paid with effect from 16 October 1997, the date Dr XXX opined that he would now regard him as being permanently medically unfit for his work as an electrician.